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HERRIN et al. v. SPIKES (two cases).
Actions for damages. Ware Superior Court. Before Judge Hodges.
FELTON, Chief Judge.
The orders sustaining the demurrers to the petitions and providing that the cases be dismissed for all the reasons assigned in the demurrers unless the plaintiffs should within thirty days file amendments curing the grounds of the demurrers were not excepted to, and fixed the law of the cases; and since the amendments failed to meet all of the objections raised by the demurrers, the court erred in overruling the defendants' motions to dismiss the cases, made after the expiration of the thirty day period. The court's subsequent allowance of amendments filed after the bill of exceptions was signed could not affect the finality of the judgment overruling the motions to dismiss since the cases were already dismissed under the initial orders.
These are actions brought by a husband and wife against the wife's employers for damages arising out of alleged injuries to the wife caused by the defendants' alleged negligence in using in their laundry business an old, defective, spin tub extractor machine which did not stop spinning when opened up, in failing to warn the plaintiff employee of this dangerous condition and in allowing her to use the machine without being trained in its operation. It is alleged that the injuries were sustained while she was attempting to unload the machine while it was, unknown to her, still spinning around.
The court sustained the defendants' general demurrers and five special demurrers in both cases and ordered that the suits "be dismissed for all the reasons assigned in said grounds of demurrer, unless the plaintiff shall within thirty days tender and have allowed an amendment curing said grounds of demurrer." Within the time allowed, the plaintiffs submitted amendments to their petitions, which the court ordered filed subject to demurrer. After the expiration of the 30 days which the court had allowed for amendment, the defendants filed motions to dismiss the amended petitions and demurred to the amendments on the grounds that they had not cured the grounds of their original demurrers. The court overruled the motions to dismiss, to which judgment the defendants except.
Where an order sustains demurrers to a petition and provides that the case will be dismissed unless the petition is amended within a stated time so as to cure the defects pointed out by the demurrers, such order, unexcepted to, fixes the law of the case as to the necessity for filing the required amendments and the case is properly dismissed when the plaintiff's amendment fails to meet the objections raised by the demurrers, whether the order requiring amendments was correct or not. Jones v. Butler, 191 Ga. 126, 128 (12 SE2d 326) and cit.; Hayes v. Simpson, 83 Ga. App. 22 (62 SE2d 441) and cit.; Northside Manor, Inc. v. Vann, 219 Ga. 298 (133 SE2d 32).
The defendants in error contend that a second amendment, which the court allowed them to file after the bill of exceptions was signed but which is not a part of the record, brings this case within the rule set forth by this court in Gillon v. Johns, 105 Ga. App. 599 (125 SE2d 70), which is as follows: "When it is brought to the attention of this court that the petition has been amended since the filing and certifying of the bill of exceptions, in which error is assigned on the overruling of a general demurrer to the petition, the posture of the case has changed and there is no final judgment going to the petition as amended with which this court can deal. Under such circumstances, the bill of exceptions must be dismissed." The GilIon case is not controlling authority since the assignment of error therein was on the overruling of a general demurrer. There the circumstances permitted further amendment, whereas in the case at bar the assignment of error was solely on the overruling of motions to dismiss, made after the time allowed by the court's order for amendment. The initial amendments having failed to cure all of the grounds of the demurrers sustained by the unexcepted-to orders, the cases stood dismissed as of the expiration of the 30 day period allowed for amendments; therefore, the court erred in overruling the motions to dismiss.
Judgments reversed. Jordan and Deen, JJ., concur.
Sumner & Boatright, J. Laddie Boatright, contra.
Bennett, Pedrick & Bennett, Larry E. Pedrick, for plaintiffs in error.
Friday May 22 20:57 EDT

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